Thursday, December 17, 2009

CPSIA - Playing Footsie with Lead Standards

I have complained in this space from time to time about the recent success of Center for Environmental Health in inducing public officials to recall shoes for lead in their soles and insoles. In that case, CA AG Jerry Brown fell right in line and recalled seven items, including a pair of shoes and a pair of sandals for these frightening infractions. The CPSC, as far as I know, was not consulted - this was State AG enforcement of the CPSIA at its best! Did I mention that Jerry Brown is running for governor again . . . .

Of course, a mania over lead in shoe soles and sandal insoles is kooky. You would hope that the CPSC wouldn't fall prey to such nonsense. Of course, the insightfully-written CPSIA makes no such distinction in the wording on its lead content restrictions. This is one reason why the footwear folks are so concerned about the law. Still, the CPSC is not so reactive to recall shoes for this reason . . . are they?

Regular readers of this space know the answer already. Here it is, the CPSC saving the world from "dangerous" leather work boots for kids! This public menace was recalled because the "Classic Scuffproof Boots" have a logo stamped on its insole that exceeds the new lead-in-paint standard. Whoa! The notice warns that "Consumers should stop using recalled products immediately unless otherwise instructed" and later advises that "Consumers should immediately take the recalled boots away from children". The number of scuffproof work boots affected is 21,000 pairs sold for between $50-$70, or between $1-1.5 million in retail value. That's real money, guys. No doubt there'll also be a penalty in, say, three years.

Soooo, what are we looking at here? These are children's leather ankle high work boots with a logo ON THE INSOLE that might violate the lead-in-paint standard. [Personally, I STRONGLY doubt that Timberland uses paint for its insole logos - we believe it's made with an ink, thus not affected by the lead-in-paint standard.] Let me ask you an important question - have you EVER licked the insole of an ankle high boot? If you have, can you please send me a diagram of how you did it? While we're at it, do you believe a child ANYWHERE has EVER licked the insole of their ankle high leather work boot? Chewed off the yummy logo? Just curious . . . .Man, are we safe now! Is it a huge stretch to contend that most people would not let their kids consume their scuffproof leather work boots, no matter how tasty? It is my distinct impression that many icky chemicals are used to make leather. That's a "watch out", if you ask me.

Furthermore, Timberland is a corporate "good guy". Their website practically oozes with enviro-friendly policies and social responsibility. In fact, they are famous for their personnel practices and activism. Here, for instance, is a portion of their mission statement:

Value. Humanity. Humility. Integrity. Excellence. These are the core values that we inject into everything we do, everyday.

Purpose. Creating positive change in our company, community and environment. Any way you can.

Clearly, the government needs to keep a close eye on these people.

Unfortunately, now that a lunatic law governs the country and CPSC leadership seeks to please a cartoon character Congress that "wants" products like this off the market, embarrassing and demoralizing recalls like this become commonplace. For business people, these irrational recalls only heighten the fear and amplify the lack of trust that now infect the regulatory environment. After all, if the CPSC would stick it to Timberland for this, what would stop them from wreaking similar havoc on you?

Somehow we have to stop this runaway train. If you don't want your country run like this, you better do something about it.

my 12 yr old just told me licking the insoles of ankle boots is the rage in middle school these days :)

too many senseless recalls are not good - no one will pay attention. consumers will need their own little guide book on which ones to pay attention to...red, orange, yellow, light yellow - kind of like the security levels they do in the airport. these boots are "white" level.

Let's not forget that any resale store or yard sale which puts these boots up for sale is breaking the law and may be committing a felony! Hey, resale shops, remember to check the CPSC website every five minutes for breaking news on dangerous products like kids boots. Keep them off the shelf! Okay, I know that means you can't really sell anything for kids but does that matter??? It would be much safer if you just closed your doors . . . .

Couple this recall with the recent recall of Vick's Dayquill Cold & Flu medicine for not having child protectant packaging and you you have a pair that beats three of a kind! Maybe after ingesting a Timberland logo children can help themselves to a few Dayquill pills to cure that nasty lead poisoning flu - hey maybe it will help with the H1N1 virus. Really, has anyone tried to open the Vicks pills...with the flu? I remember trying and having the strength of a child and still couldn't do it! I needed scissors! Dumb recall after dumb, un-believeable recall! Keep up the grat work Rick, we're with ya!

So what you're saying is that if KNEW FOR A FACT that one of Learning Resources' products inadvertently contained a tiny amount of lead paint that was unlikely to be accessible to children you WOULD NOT voluntarily recall it.

Anon, you raise a very interesting question, one I have pondered for a long time. I believe the question you raise is whether I think there should be a de minimus exception to the lead-in-paint rule. Just to be clear, that ISN'T the rule now, and of course, we follow the law. The legal question of whether to report, to not sell and/or to recall, is clear.

It is worth noting that the CPSC has not always required that every lead-in-paint violation be recalled. This practice in prior years reflected their independent judgment - but it has become politically-incorrect to take this position nowadays. That's one reason, an IMPORTANT reason, why we have seen so many more recalls now. Ask ex-CPSC folks if I am right or wrong. Nancy Nord in fact informed us at the New York Toy Fair two years ago that in 2007/8, the CPSC policy changed to automatic recalls, no matter what.

As for the question you pose, I can argue on both sides. As I see it, a de minimus exception to the law (even if in the form of enforcement policy) makes a great deal of sense. Lead-in-paint is not a health issue if the MASS of lead is tiny. Lead is a toxin that builds up in blood levels; little lead has little effect. [There happens to be plenty of lead in our air, our water and our food. We ingest lead all day long.] Let's be honest, no one is eating cases of toys so the health risks from a tiny violative dot on the eye of a dino is not going to hurt anyone.

On the other hand, it is possible to assert that a ban on lead-in-paint needs to be absolute to get people to take it seriously. From this vantage point, it is essential from a policy standpoint for everyone to know that there's hell to pay for this violation. Of course, the fear of L-I-P on toys comes from justifiable fear of lead-in-house paint, and by now, we have lost all perspective on what causes lead poisoning. Anyhow, this is the argument for strict liability.

Thus, the dilemma!

On truth serum, I would probably vote for the de minimum standard, so yes, I would endorse a policy to establish a mass threshhold for lead in a lead-in-paint violations, above which recalls would be mandatory and below which they would be discretionary (based on facts and circumstances). For instance, a tiny violation by a repeat offender might merit a recall, and a tiny first-time violation perhaps not. This policy would acknowledge that the health risks of many (most?) toy lead-in-paint violations are frankly low and further, that the cost of a recall can be devastating. I prefer that devastating losses serve a purpose, and don't think we can rationally assert that this allocation of devastation truly helps anyone. If the facts of the cases indicate that there are additional behavioral incentives needed (to reform "bad guys"), the CPSC has other tools in its tool chest, like do-not-sell orders, fines, etc.

It's a borderline call, in my opinion. This is one reason why I have not stood on a soapbox and called for the rule. Thanks for asking!